Dismantling The Repair Monopoly Created By The DMCA's Anti-Circumvention Rules

from the tractor-liberation-front dept

One of the biggest victories of the copyright maximalists was the successful adoption of the 1996 WIPO Copyright Treaty, implemented by the DMCA in the US, and the Copyright Directive in the EU. Its key innovation was to criminalize the circumvention of copyright protection mechanisms. That strengthens copyright enormously by introducing yet another level of legal lockdown, and thus yet another powerful weapon for copyright holders to wield against their customers. But as Techdirt has reported, the anti-circumvention laws are now being used to prevent people from exploring or modifying physical objects that they own.

The DMCA's anti-circumvention rules not only strengthen an old monopoly -- copyright -- they create a new one. Because it is forbidden to circumvent protection measures, only the original manufacturer or approved agents can legally repair a device that employs such technologies. Motherboard has an interesting profile of efforts by the wider repair industry to dismantle that new monopoly before it spreads further and becomes accepted as the norm:

Repair groups from across the industry announced that they have formed The Repair Coalition, a lobbying and advocacy group that will focus on reforming the Digital Millennium Copyright Act to preserve the “right to repair” anything from cell phones and computers to tractors, watches, refrigerators, and cars. It will also focus on passing state-level legislation that will require manufacturers to sell repair parts to independent repair shops and to consumers and will prevent them from artificially locking down their products to would-be repairers.
The advocacy group is not exactly new, more of a re-branding and re-launching of "The Digital Right to Repair Coalition", which was formed in 2013. Its aims are ambitious:
The Repair Coalition will primarily work at a federal level to repeal Section 1201 of the DMCA, which states that it's illegal to "circumvent a technological measure that effectively controls access to a work protected under [the DMCA]." Thus far, activists have tried to gain "exemptions" to this section -- it's why you're allowed to repair a John Deere tractor or a smartphone that has software in it. But the exemption process is grueling and has to be done every three years.
Given the power of the industries that support Section 1201, it's hard to see it being repealed any time soon. However, the other part of the Repair Association's strategy looks more hopeful:
On a state level, the group will push for laws such as one being proposed in New York that would require manufacturers to provide repair manuals and sell parts to anyone -- not just licensed repair people -- for their products. The thought is that, if enough states pass similar legislation, it will become burdensome for manufacturers to continue along with the status quo. At some point, it will become easier to simply allow people to fix the things they own.
As software is routinely added to yet more categories of everyday physical objects, so the issue of the repair monopoly created as a by-product of the DMCA will become more pressing. It's good that there is now an advocacy group focussed on solving this problem. Let's hope it succeeds.

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Filed Under: anti-circumvention, copyright, dmca, dmca 1201, repair monopoly, right to repair
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  1. identicon
    Anonymous Coward, 9 Feb 2016 @ 2:51pm

    For comparison here's what the TPP says..

    Article 18.68: Technological Protection Measures (TPMs)82

    1. In order to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that authors, performers, and producers of phonograms use in connection with the exercise of their rights and that restrict unauthorised acts in respect of their works,
    performances, and phonograms, each Party shall provide that any person that:

    (a) knowingly, or having reasonable grounds to know, circumvents without authority any effective technological measure that controls access to a protected work, performance, or phonogram; or

    (b) manufactures, imports, distributes, offers for sale or rental to the public, or otherwise provides devices, products, or components, or offers to the public or provides services, that:

    (i) are promoted, advertised, or otherwise marketed by that person for the purpose of circumventing any effective technological measure;

    (ii) have only a limited commercially significant purpose or use other than to circumvent any effective technological measure; or

    (iii) are primarily designed, produced, or performed for the purpose of circumventing any effective technological measure,

    is liable and subject
 to the remedies provided for in Article 18.74 (Civil and Administrative Procedures and Remedies).

    Each Party shall provide for criminal procedures and penalties to be applied if any person is found to have engaged wilfully and for the purposes of commercial advantage or financial gain in any of the above activities.
    A Party may provide that the criminal procedures and penalties do not apply to a non-profit library, museum, archive, educational institution, or public non- commercial broadcasting entity. A Party may also provide that the remedies provided for in Article 18.74 (Civil and Administrative Procedures and Remedies) do not apply to any of the same entities provided that the above activities are carried out in good faith without knowledge that the conduct is prohibited.

    2. In implementing paragraph 1, no Party shall be obligated to require that the design of, or the design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, provided that the product does not otherwise violate a measure implementing paragraph 1.

    3. Each Party shall provide that a violation of a measure implementing this Article is independent of any infringement that might occur under the Party’s law on copyright and related rights.

    4.
    With regard to measures implementing paragraph 1:

    (a) a Party may provide certain limitations and exceptions to the measures implementing paragraph 1(a) or paragraph 1(b) in order to enable non-infringing uses if there is an actual or likely adverse impact of those measures on those non-infringing uses, as determined through a legislative, regulatory, or administrative process in accordance with the Party’s law, giving due consideration to evidence when presented in that process, including with respect to whether appropriate and effective measures have been taken by rights holders to enable the beneficiaries to enjoy the limitations and exceptions to copyright and related rights under that Party’s law;


    (b) any limitations or exceptions to a measure that implements paragraph 1(b) shall be permitted only to enable the legitimate use of a limitation or exception permissible under this Article by its 
intended beneficiaries and does not authorise the making available of devices, products, components, or services beyond those intended beneficiaries; and

    (c) a Party shall not, by providing limitations and exceptions under paragraph 4(a) and paragraph 4(b), undermine the adequacy of that Party’s legal system for the protection of effective technological measures, or the effectiveness of legal remedies against the circumvention of such measures, that authors, performers, or producers of phonograms use in connection with the exercise of their rights, or that restrict unauthorised acts in respect of their works, performances or phonograms, as provided for in this Chapter.

    5. Effective technological measure means any effective technology, device, or component that, in the normal course of its operation, controls access to a protected work, performance, or phonogram, or protects copyright or related rights related to a work, performance or phonogram.

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